appeal from the superior court ofmason county … coa... · appeal from the superior court ofmason...

No. 44974- 9- 11

COURT OF APPEALS, DIVISION II

STATE OF WASHINGTON

STATE OF WASHINGTON, RESPONDENT

V.

MICHAEL McCOMAS, Jr., APPELLANT

Appeal from the Superior Court of Mason CountyState of Washington

No, 12 -1- 00478 -1

BRIEF OF RESPONDENT

MICHAEL DORCY

Mason County Prosecuting Attorney

ByTIM HIGGS

Deputy Prosecuting AttorneyWSBA #25919

521 N. Fourth Street

PO Box 639

Shelton, WA 98584

PH: ( 360) 427- 9670 ext. 417

TABLE OF CONTENTS

Page

A. STATE' S RESTATEMENT OF APPELLANT' S

ASSIGNMENTS OF ERROR 1

B. STATE' S COUNTER - STATEMENTS OF ISSUES

PERTAINING TO APPELLANT' S ASSIGNMENTS

OF ERROR 1

C. FACTS AND STATEMENT OF CASE 2

D. ARGUMENT 12

1. Because the trial court' s findings of fact numbers 7 and 9

are supported by substantial evidence in the record, andbecause it was within the discretion of the trial court to

make these findings of fact, the trial court did not err in

making these findings 12

2. The trial court allowed an audio - recorded version of a

witness' s prior inconsistent statement to be used as

substantive evidence at trial. Because the trial court

correctly followed the requirements of State v. Smith, 97Wn.2d 856, 651 P. 2d 207 ( 1982), and ER 801( d)( 1)( i)

when admitting the statement, and because the witnesstestified at trial and was subjected to cross examination,

the defendant' s confrontation rights were not violated,

and the court did not err by admitting the statement intoevidence 13

3. Because the prior inconsistent statement at issue in this

case was audio - recorded rather than written, the witness

gave an oral declaration under penalty of perjury ratherthan a written one, and it is therefore arguable that the

State' s Response Brief

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oath or affirmation requirement of ER 801( d)( 1)( i) was

not satisfied in this case. But, even if admission of

the statement was error, the error is nonconstitutional,

and on the facts of this case the error was harmless 21

E. CONCLUSION . 21


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TABLE OF AUTHORITIES

Page

Table of Cases

State Cases

In re Davis, 152 Wn.2d 647, 101 P. 3d 1 ( 2004) . 12

In re Gentry, 137 Wn.2d 378, 972 P. 2d 1250 ( 1999) 12

Ino Ino, Inc. v. City ofBellevue, 132 Wn.2d 103, 937 P. 2d 154, 943 P. 2d 1358 ( 1997) 12

State v. Aguirre, 168 Wn.2d 350, 229 P. 3d 669 ( 2010) 14

State v. Dobbs, Wn,2d , 320 P. 3d 705

No. 87472 -7, Mar. 13, 2014) 12

State v. Grover, 55 Wn. App. 252, 777 P.2d 22, review denied, 113 Wn.2d 1032, 784 P.2d 531 ( 1989) . 18

State v. Halstien, 122 Wn.2d 109, 857 P. 2d 270 ( 1993) . 20

State v. Neal, 144 Wn.2d 600, 30 P. 3d 1255 ( 2001) .... 20

State v. Pierce, 134 Wn. App. 763, 142 P. 3d 610 ( 2006) . 13

State v. Smith, 97 Wn.2d 856,

651 P. 2d 207 ( 1982) . 1, 7, 14, 15, 16, 17, 18

State v. Tharp, 96 Wn.2d 591, 637 P. 2d 961 ( 1981) 20

State v. Truong, 168 Wn. App. 529, 277 P. 3d 74, review denied,. 175 Wn.2d 1020, 290 11, 3d 994 (2012) 13

Federal Cases

Crawford v, Washington, 541 U. S. 36, 124 S. Ct. 1354,

158 L.Ed,2d 177 ( 2004) 18


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Statutes

RCW 5. 28. 010 16

RCW 5. 28. 020 . 16

RCW 9A.72.085 16, 17

Court Rules

ER 801( d)( 1)( i) 1, 2, 14, 16, 18, 19

ER 801( d)( 1)( iii) . 18


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A. STATE' S RESTATEMENT OF APPELLANT' S

ASSIGNMENTS OF ERROR

1. The trial court erred by admitting Ms, McComas' s priorstatement as substantive evidence at trial under ER

801( d)( 1)( i).

2. The court erred in entering finding of fact 7. CP 5.

3. The court erred in entering finding of fact 9. CP 6.

4. The court erred in entering conclusion of law 1. CP 6.

5. The court erred in entering conclusion of law 2. CP 7.1

6. The court erred in entering conclusion of law 3. CP 7.

7, The court erred in entering conclusion of law 4. CP 7.

B. STATE' S COUNTER - STATEMENT OF ISSUES PERTAINING

TO APPELLANT' S ASSIGNMENTS OF ERROR

1. Because the trial court' s findings of fact numbers 7 and 9 are

supported by substantial evidence in the record, and because itwas within the discretion of the trial court to make these

findings of fact, the trial court did not err in malting thesefindings.

2. The trial court allowed an audio- recorded version of a

witness' s prior inconsistent statement to be used as substantive

evidence at trial. Because the trial court correctly followed therequirements of State v. Smith, 97 Wn.2d 856, 651 P. 2d 207

1982), and ER 801( d)( 1)( i) when admitting the statement, and

k Assignments of Error numbers 5, 6, and 7 are actually numbered as 8, 9, and 10 inAppellant' s brief, but because the numbers 5, 6, and 7 are omitted, this appears to be a

typographical error; so, the State has renumbered the assignments of error accordingly.


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because the witness testified at trial and was subjected to cross

examination, the defendant' s confrontation rights were not

violated, and the court did not err by admitting the statementinto evidence.

3. Because the prior inconsistent statement at issue in this casewas audio - recorded rather than written, the witness gave an

oral declaration under penalty of perjury rather than a writtenone, and it is therefore arguable that the oath or affirmation

requirement of ER 801( d)( 1)( i) was not satisfied in this case.

But, even if admission of the statement was error, the error is

nonconstitutional, and on the facts of this case the error was

harmless.

B, FACTS AND STATEMENT OF THE CASE

On November 15, 2012, Philana McComas walked into the Mason

County Sheriff' s Office and reported that that her husband, Michael, had

choked and hit her. RP 4. When she appeared at the sheriff' s office, she

was shaken, crying, and visibly upset, and she had visible signs of injury.

RP 5 -7. Ms. McComas said that she was hit at least a couple of times on

the back and that an injury to her neck was caused when her husband

choked her. RP 6.

Another deputy, Deputy Cotte, who happened to be accompanied

by an " in- training deputy," Deputy Colbenson, also interviewed Ms.

McComas later in the day on November15th,

RP 12 -13. The deputies


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went to Ms. McComas' s home and, at 5: 17 p.m., took an audio - recorded

statement from her. RP 14- 15. At a pretrial hearing to determine the

admissibility of the statement as substantive evidence, a transcript of the

audio recording was referred to as " pretrial Exhibit No. 2," but was

actually marked as " Pretrial Exhibit 1." RP 14; CP ( Pretrial Exhibit 1);

CP ( List of Exhibits, Defense Motion Hearing).2

At the conclusion of Ms.

McComas' s audio - recorded statement, Deputy Cotte asked her the

following question:

D] o you Philana R. McComas certify or declare under penalty ofperjury under the laws of the State of Washington that theforegoing is true and correct and that your statement was madefreely and voluntarily without any threats or promises of any kind?

RP 15; Pretrial Exhibit 1 at p. 6. To this question, Ms, McComas

answered, " Yes." Id

While Deputy Cotte was in Ms. McComas' s home taking her

statement, he noticed damage to a wall. RP 16. IIe asked her how the

damage occurred, and she told him that her husband, Michael, caused the

damage when he threw a plate at the wall. RP 16.

When giving the audio - recorded statement, Ms. McComas said

that earlier on the same day, in the morning, she had awoken to sounds of

2 These documents were designated for the record by supplemental designation of clerk' spapers on April 25, 2014, but at the final draft of this brief have not yet been transmitted


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her husband, Michael McComas, banging things around. Pretrial Exhibit

1 at p. 2. She said that when she " asked him what his problem was he

screamed" offensive vulgarities at her " and then... picked up a bunch of

dishes and threw them into the wall," Id. at 2 -3. This incident is what

caused the holes in the wall as observed by Deputy Cotte. Id. at 3. She

said that she then tried to grab her cell phone and run out of the house, but

that he attacked her, took her to the ground, and choked her, causing her to

black out for a second. Id.

In her audio - statement Ms. McComas said that, when she

recovered from blacking -out, Michael... " was off doing something, I

don' t what he was doing, breaking more stuff." Id. So, she ran out of the

house. Id. But because the police station was closed for lunch, she also

went to lunch (rather than immediately reporting the inciden), and

afterward her friend who is the daughter of a police officer then went with

her to the hospital and the police station. Id.

On these facts, the State charged Michael McComas with one

count of assault in the second degree by strangulation with a special

allegation of domestic violence. CP 72,

or assigned page numbers in the record.


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Two and a half months later, on January 31, Deputy Noyes again

interviewed Ms. McComas, RP 6 -7. This second interview occurred

because a deputy prosecutor asked Deputy Noyes to interview Ms.

McComas again because she was recanting her prior statement. RP 7- 8.

At the pretrial hearing to determine the admissibility of Ms. McComas' s

original, November 15th statement, Deputy Noyes testified in regard to the

January 31st statement as follows: " And she carne in and we talked

briefly and then she — initially, she was going to give me a recorded

statement but then she decided she would not." RP 7 -8. At this interview,

Ms. McComas said she did not get strangled or choked. RP 8. She said

that she had scuffled with Michael when she tried to take an iPod away

from him and that as a result he had fallen on top of her. RP 8, Ms.

McComas said the injury to her neck probably was caused by this fall, and

she said the scratches were probably caused by her dog. RP 9 - 10,

At the pretrial hearing, Ms. McComas testified that she

remembered going to the sheriff's office on November 15, but that

e] verything was just a little hectic and fuzzy." RP 21. She testified that

she remembered giving a statement that day, but that she did not

remember that it was recorded. RP 21 -22. She testified that she did not


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remember the deputy advising her that her statement was given under the

penalty of perjury, RP 22,

Ms. McComas was provided with a copy of a transcript of her

audio - recorded statement. RP 22. The transcript was correctly marked

and identified at the hearing as " Exhibit No, 1." RP 22. She indicated that

she had no memory of giving the statement, to include no memory of the

language where she affirmed that the statement was given under penalty of

perjury. RP 22 -23. She testified that, until the meaning was explained to

her two days before her testimony, she did not know the meaning of the

word "perjury." RP 23. Through defense questioning, she clarified that

when she gave her audio - statement, she did not know the meaning of the

word " perjury." RP 23, She testified that mental health issues contributed

to her not fully understanding the nature of the statement. RP 24.

The trial court judge who heard the pretrial motion found that,

based upon Ms. McComas' s demeanor and her responses, her testimony

that she did not know the meaning of the word " perjury" was not credible.

RP 35; CP 6 ( Finding of Fact No, 9). The trial court judge signed written

findings of fact and conclusions of law that allowed Ms. McComas' s


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audio - recorded statement to be admitted at trial as substantive evidence as

a Smith affidavit.3 CP 4 -7.

At trial, Ms. McComas testified again that Michael McComas was

her husband. RP 67, 81. She testified that on November 15, 2012, she

was at home in Mason County and that she woke up that day at about 9 :00

or 10: 00 in the morning before she had to go to work. RP 67 -68. She said

that she awoke to the sound of music. RP 68. She denied that she heard

banging, but admitted that she remembered noise. RP 69. She testified to

a lack of memory about what happened that day, and when asked to

confirm the details of the incident that had occurred that morning, she now

answered: " I' m not sure. Maybe." RP 69 -70. She said that it was " hard

to recall any details." RP 70.

Ms. McComas did, however, admit in her testimony that there

were some dishes thrown during the incident. RP 70. She said that she

didn' t want to argue, so she grabbed her cell phone and immediately left.

RP 70. But when pressed to provide details about what had happened

before she left, Ms. McComas testified: " I kind of — I kind of just clouded

my memory. 1 don' t — couldn' t honestly tell you now today." RP 71.

3 State v. Smith, 97 Wn.2d 856, 651 P.2d 207 ( 1982).


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When asked whether her husband had choked her, Ms. McComas

answered that she had clumsily bounced off the couch and she thought

the dogs kind of got a little rustled up." RP 71. She said, " I — that' s

really all I remember." RP 71. When asked again whether her husband

had choked her, she said: " I don' t —1 honestly don' t think so. I think the

dog had stepped on me or something like that." RP 71.

When asked whether she remembered losing consciousness, Ms.

McComas testified that she sees yellow and then blacks out when she gets

really mad. RP 71 - 72. When questioned by the prosecutor about whether

she remembered saying that she blacked out when she was choked by the

defendant, she said, " Oh, no, probably from being so upset...." RP 72.

She said that the only thing she could remember was a previous

relationship. RP 73.

Deputy Noyes testified at trial that when he saw Ms, McComas on

November 15, 2012, she had red abrasions on her neck, scratches on her

chest, and a red mark on her lower back. RP 96 -99. Ile identified exhibits

2 and 5 as photographs that accurately portrayed Ms. McComas' s injuries

as they appeared on November15th.

RP 96 -100. These exhibits were

admitted into evidence. RP 97, 100.


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Deputy Cotte testified that on November 15, 2012, he went to the

McComas' s house and that while he was there he took two photographs of

damage to the wall. RP 106. These photographs, marked as exhibits 3

and 4, were admitted into evidence. RP 106, Deputy Cotte testified that

while at the McComas home he recorded Ms. McComas' s audio -

statement. RP 106. Deputy Cotte identified Exhibit 1 as a copy of a CD

of the audio statement. RP 107. Exhibit 1 was admitted into evidence.

RP 107 -08. The prosecutor asked for permission to publish Exhibit 1 to

the jury. RP 107. At the close of trial, Exhibit 1 was provided to the jury

along with other admitted exhibits, but it is not clear whether the jury

listened to the CD again. RP 196.

Before allowing publication, the trial court explained to the jury as

follows:

Many times we find that listening to audio here in this largecourtroom with the tall ceiling, it' s difficult to pick up all thewords and so we do permit that you be able to read along with awritten transcription of what is on the statement.

But that written transcription will be picked up right afterwe finish listening to this. It' s not something that becomesevidence.

RP 108. The transcript, which was identical to Pretrial Exhibit 1, except

that it did not include a certification from the transcriptionist, was marked

as Trial Exhibit 1A. The transcripts were passed out to the jury, and the


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audio CD of Ms, McComas' s statement was then played to the jury, RP

108 -09. The bailiff then collected the written transcripts from the jury.

RP 109.

After the State rested, the defendant, Michael McComas, then

testified, RP 117, Mr. McComas said that on November 15, 2012, he got

off work at about 7: 00 a.m., then " came home about 7: 30, cleaned out the

litter box, did the dishes, put my pizza in the oven, and drank a few beers."

RP 121. Ms, McComas woke up at about 8: 30 and came out and

confronted him about him making too much noise. RP 122, 132.

Mr, McComas then admitted that they began to argue and that he

threw two cup - holders into the wall and caused damage to the wall, RP

122, 136 -37. Mr. McComas admitted that he pulled Ms. McComas to the

ground and held her down by kneeling on her arms while grabbing or

pushing her shoulders with his hands, but he claimed that he did this in

self-defense because she has a mental disorder and was hitting him and

hitting herself RP 122 -29, 145. He explained that " you' ve got to hold

her down with the shoulders and hold her arms down to the ground with

your knees so she doesn' t punch herself in the face," RP 124 -25.

At the close of trial, both the State and the defense proposed self -

defense instructions for the jury. RP 153 -55. The court instructed the jury


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on the defense of self - defense. RP 170 -72; CP 34 -37 ( Jury Instructions

13 - 16).

During closing arguments, the defense began by stating to the jury

that Mr. McComas admits to having assaulted his wife, not in the sense

of committing second degree assault but in the sense of self - defense." RP

187. The defense argued that " the reasonable doubt as to strangulation for

second degree assault is definitely there." RP 189. The defense then

addressed the lesser included offense of assault in the fourth degree, but

argued the defense of self- defense. RP 189 -91. The defense summed up

that "[ t] he proper verdict here is not guilty all the way around based on the

self- defense defense that you were instructed on. And if you do not accept

that, then the proper verdict is fourth degree assault with the family

relation part of it." RP 192 -93.

The jury returned a not - guilty verdict on the charge of assault in

the second degree, but returned a guilty verdict on the lesser included

offense of assault in the fourth degree, and it answered " yes" to the special

verdict, finding that Michael McComas and Philana McComas were

family or household members. RP 197 -98; CP 16 -18.


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C. ARGUMENT

1. Because the trial court' s findings of fact numbers 7 and 9 are

supported by substantial evidence in the record, and because itwas within the discretion of the trial court to make these

findings of fact, the trial court did not err in making thesefindings.

On appeal, a trial court' s findings of fact are reviewed to determine

whether they are supported by substantial evidence in the record. State v.

Dobbs, Wn.2d , 709, 320 P. 3d 705 ( No, 87472 -7, Mar. 13, 2014).

Unchallenged findings of fact are verities on appeal. In re Davis, 152

Wn.2d 647, 679 -80, 101 P.3d 1, 19 -20 ( 2004). The party who challenges

a trial court' s finding of fact bears the burden of proving that it is not

supported by substantial evidence in the record. Id. ' Substantial

evidence exists when the record contains evidence of sufficient quantity to

persuade a fair - minded, rational person that the declared premise is true. "'

Id. at 680 -81, ( quoting Ino Ino, Inc. v. City ofBellevue, 132 Wn.2d 103,

1. 12, 937 P.2d 154, 943 P. 2d 1358 ( 1997), quoted in In re Gentry, 137

Wn.2d 378, 410, 972 P. 2d 1250 ( 1999)).

When ruling on the defendant' s pretrial motion in limine to

exclude the prior inconsistent statement of the victim in this case, the court

entered Finding of Fact No. 7, as follows:


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The court finds the alleged victim' s testimony in this hearing to benot credible on the issue of understanding the statement was madeunder penalty of perjury[.

CP 5. Additionally on this subject, the trial court entered Finding of Fact

No. 9, as follows:

The court finds the alleged victim' s testimony in this hearing aboutunderstanding the meaning of the word " perjury" was not credible. The court does not find her truthful when discussing her ability toknow what the word " perjury" means and finds she doesunderstand the meaning of the word " perjury."

CP 6.

In its oral ruling, the trial court explained that its finding that the

witness was not credible was based upon the witness' s " demeanor and her

responses." RP 35. The trial court' s findings of fact are supported by

substantial evidence in the record, as found at RP 20- 27. Because the trial

court judge is in the best position to assess the demeanor and credibility of

witnesses, the reviewing court generally will not disturb those findings.

State v. Truong, 168 Wn. App. 529, 534, 277 P. 3d 74 review denied, 175

Wn.2d 1020, 290 P. 3d 994 ( 2012), citing State v. Pierce, 134 Wn. App.

763, 774, 142 P. 3d 610 ( 2006).

2, The trial court allowed an audio - recorded version of a

witness' s prior inconsistent statement to be used as substantive

evidence at trial. Because the trial court correctly followed the


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requirements of State v. Smith, 97 Wn.2d 856, 651 P. 2d 207

1982), and ER 801( d)( 1)( i) when admitting the statement, andbecause the witness testified at trial and was subjected to cross

examination, the defendant' s confrontation rights were not

violated, and the court did not err by admitting the statementinto evidence.

Questions of the admissibility of testimonial evidence are within

the sound discretion of the trial court, and a decision to admit such

evidence is reviewed for abuse of discretion. State v. Aguirre, 168 Wn.2d

350, 361 -62, 229 P. 3d 669 (2010) ( citation omitted). " An erroneous

ruling with respect to such questions requires reversal only if there is a

reasonable possibility that the testimony would have changed the outcome

of the trial." Id. at 361.

If a prior inconsistent statement satisfies the elements of ER

801( d)( 1)( i), the statement is admissible as substantive evidence. State v.

Smith, 97 Wn.2d 856, 862 -63, 651 P. 2d 207 ( 1982). To determine

whether the statement is admissible, " reliability is the key." Id. at 861. To

assess the reliability of the prior inconsistent statement, the trial court

considers whether: ( 1) the witness voluntarily made the statement; ( 2)

there were minimal guarantees of truthfulness; ( 3) the statement was taken

as standard procedure in one of the four legally permissible methods for

determining the existence of probable cause; and ( 4) the witness was


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subject to cross - examination when giving the subsequent inconsistent

statement, Id, at 861 - 63.

In the instant case, the trial court correctly engaged in each of the

required considerations, RP 32 -35; CP 4 -7, The instant case is unique,

however, because, although the statement was reduced to a written

transcript prior to its admission, initially the statement was audio - recorded

rather than written. Trial Exhibit 1; Pretrial Exhibit 1; Trial Exhibit 1 A.

First, it is apparent that the trial court correctly found that the

statement was made voluntarily because the voluntary nature of the

statement is apparent from the audio - recording itself and from the

witness' s testimony. RP 20 -27, 33 -34, 66 -92; Pretrial Exhibit 1; Trial

Exhibits 1, IA. In State v. Smith, 97 Wn.2d 856, 862 -63, 651 P.2d 207

1982), the Court found that the statement at issue in that case was

voluntary because the witness in that case " voluntarily wrote the statement

herself," Id. at 863. The State asserts that, as in Smith, the voluntariness

of the witness' s statement is shown in the instant case because, although

the statement in the instant case was audio- recorded rather than written,

the voice on the audio - recording is the witness' s own voice, the witness

spoke for herself and chose her own words, and there is no hint of

coercion. RP 20 -27, 33 -34, 66 -92; Pretrial Exhibit 1; Trial Exhibits 1, 1A.


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Second, the court in the instant case found that the witness' s

statement satisfied minimal guarantees of truthfulness. CP 7. At the close

of the witness' s audio - recorded statement, Deputy Cotte asked her the

following question:

And do you, Philana R. McComas, certify or declare under penaltyof perjury under the laws of the State of Washington that theforegoing is true and correct and your statement was made freelyand voluntarily without any threats or promises of any kind?

Trial Exhibit 1A, at p. 6; Pretrial Exhibit 1, at p. 6,

The Court in Smith found in favor of reliability of the witness' s

statement in that case because the witness " swore to it under oath with

penalty of perjury before a notary." Smith, 97 Wn.2d at 863. In the

instant case, there was no notary, and the record does not support an

argument that Deputy Cotte was authorized by RCW 5. 28. 010 to

administer an oath and that the oath was administered as required by RCW

5. 28. 020.

But ER 801( d)( 1)( i) does not require a notary or the administration

of an oath in compliance with RCW 5, 28.010 and . 020, The audio -

statement at issue in the instant case — except that it was oral rather than

written — complied with the requirements of RCW 9A.72. 085 because the

oral declaration specifically stated that it was made under the penalty of


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perjury, and the time and place of making the declaration were established

by Deputy Cotte' s testimony. Trial Exhibit 1A, at p. 6; Pretrial Exhibit 1,

at p. 6; RP 13 - 15, 105 -08.

The language of RCW 9A,75, 085 states that the oath requirement

of a court rule may be proved " by an unsworn written statement" that is

executed in compliance with the terms of the statute. ( Emphasis added).

Here, the statement was initially oral, rather than written, but was reduced

to writing in the form of a transcript prior to trial. Trial Exhibit 1A, at p.

6; Pretrial Exhibit 1, at p. 6; RP 13 -15, 105 -08,

The third Smith factor, that the statement was taken in one of the

four legally permissible ways for determining probable cause, was

established in this case. The Court in Smith found that " the taking of

statements from witnesses and the presentment of them to the prosecuting

attorney" was one of the four legally permissible ways of establishing

probable cause. Smith, 97 Wn.2d at 862.

Finally, as in Smith, the witness here was subject to cross

examination when she gave her subsequent, inconsistent statement at trial.

RP 81 -91, 92 -93. Because the witness testified at trial and was subject to

cross examination on both her current testimony and her prior inconsistent

statement, the admission of her prior inconsistent statement into evidence


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was not barred by Crawford v. Washington.4

See, e. g., State v. Grover, 55

Wn. App. 252, 259, 777 P. 2d 22, review denied, 113 Wn.2d 1032, 784

P. 2d 531 ( 1989) ( holding there is no violation of the confrontation clause

when the defendant is given an opportunity to cross examine the declarant

of a ER 801( d)( 1)( iii) hearsay exception).

The Court in Smith found in favor of reliability of the witness' s

prior inconsistent statement because the witness " admitted at trial she had

made the statement and gave an inconsistent statement at trial where she

was subject to cross examination." Smith, 97 Wn.2d at 863. In the instant

case the witness gave only weak admissions that she had made the prior

inconsistent statement. RP 72, 76, 79. But, because her statement was

audio - recorded, it was irrefutably obvious that she made the statement.

Trial Exhibits 1, 1A.

In conclusion on this topic, the State avers that the trial court

correctly applied the requirements of State v. Smith, 97 Wn.2d 856, 862-

63, 651 P. 2d 207 ( 1982), and ER 801( d)( 1)( i) and properly admitted the

witness' s audio - recorded, prior inconsistent statement into evidence.

3. Because the prior inconsistent statement at issue in this case

was audio- recorded rather than written, the witness gave an

4 Crawford v. Washington, 541 U. S. 36, 124 S. Ct. 1354, 158 L,. Ed.2d 177 ( 2004).


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oral declaration under penalty of perjury rather than a writtenone, and it is therefore arguable that the oath or affirmation

requirement of ER 801( d)( 1)( i) was not satisfied in this case. But, even ifadmission of the statement was error, the error is

nonconstitutional, and on the facts of this case the error was

harmless.

The defendant in this case was charged with assault in the second

degree, but the jury was instructed in regard to both assault in the second

degree and in regard to the lesser included offense of assault in the fourth

degree. CP 72; CP 31 -33 ( Jury Instructions No. 10, 11, 12); RP 169 -70.

The audio - recorded statement at issue in this case was primarily

composed of the victim' s statement about an act of strangulation, which

supported the charge of assault in the second degree. Trial Exhibit 1, 1A;

Pretrial Exhibit 1. The defendant testified and denied the act of

strangulation, but he admitted the act of assault in the forth degree and

claimed that is was justified as an act of self-defense. RP 122 -29, 136 -37,

145. During closing argument, the defendant argued his self- defense

theory to the jury. RP 187 -93.

Despite McComas' s claims of self - defense, the jury acquitted him

of assault in the second degree but found him guilty of assault in the forth

degree. CP 17, 18. Substantial evidence other than the victim' s audio -

recorded statement supports the jury' s verdict. Close scrutiny shows that


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the victim' s audio - recorded statement probably had no effect on the jury' s

verdict, because the statement is insubstantial in regard to the lesser

included charge of assault in the fourth degree. Trial Exhibit 1, 1A. The

substantial evidence the jury saw was photographs of injuries to the victim

and photographs of substantial damage that McComas caused by throwing

objects into the wall. Trial Exhibits 2, 3, 4, and 5. Further substantial

evidence that the jury received was McComas' s admission that he

assaulted the victim. RP 122 -29, 136 -37, 145. It is apparent that the jury

when weighing McComas' s credibility or when considering the court' s

instructions on self- defense believed McComas' s admission that he

assaulted the victim but apparently rejected the defense of self - defense.

CP 17.

Nonconstitutional error in admitting hearsay evidence requires

reversal only if it is reasonably probable that the error materially affected

the trial' s outcome." State v. Neal, 144 Wn.2d 600, 611, 30 P. 3d 1255

2001). " An evidentiary error which is not of constitutional magnitude

requires reversal only if the error, within reasonable probability, materially

affected the outcome of the trial." State v. Halstien, 122 Wn.2d 109, 127,

857 P.2d 270 ( 1993), citing State v. Tharp, 96 Wn.2d 591, 599, 637 P. 2d

961 ( 1981). The State contends that on the facts of this case, even if it was


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error to admit the victim' s audio - recorded statement into evidence, it is

improbable that the statement had any effect on the jury' s verdict of guilty

for the lesser included offense of assault in the fourth degree, which was

admitted to by the defendant and was supported by corroborating

evidence.

D. CONCLUSION

For the reasons argued above, the State respectfully requests that

the Court sustain the trial court' s judgment of guilty in this case for the

lesser included offense of assault in the fourth degree, domestic violence.

DATED: April 28, 2014.


Case No. 44974 -9 -11

MICHAEL DORCY

Mason CountyProsecuting Attorney

141-4-4—

Ti Higgs

Deputy Prosecuting AttorneyWSBA #25919

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Document Uploaded:

MASON COUNTY PROSECUTOR

April 28, 2014 - 6: 12 PM

Transmittal Letter

449749 - Respondent' s Brief.pdf

Case Name: State v. McComas

Court of Appeals Case Number: 44974 -9

Is this a Personal Restraint Petition? Yes • No

The document being Filed is:

Designation of Clerk' s Papers Supplemental Designation of Clerk' s Papers

Statement of Arrangements

Motion:

Answer /Reply to Motion:

Brief: Respondent' s

Statement of Additional Authorities

Cost Bill

Objection to Cost Bill

Affidavit

Letter

Copy of Verbatim Report of Proceedings - No. of Volumes:

Hearing Date( s):

Personal Restraint Petition ( PRP)

Response to Personal Restraint Petition

Reply to Response to Personal Restraint Petition

Petition for Review ( PRV)

Other:

Comments:

No Comments were entered.

Sender Name: Tim J Higgs - Email: timh@co. mason. wa. us

A copy of this document has been emailed to the following addresses:

kate@washapp. org

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